P L D 1977 Lahore 429 (PLP)

Date of hearing : 8th October 1976. This judgment will also dispose of R. S. As. Nos. 118 of 1961 and 119 of 1961 as similar points of law and facts are involved in all the cases and all the appeals have been filed against the same judgment anal decree between the parties.

2. According to the plaintiffs-respondents their predecessors-in-interest and thereafter they themselves have been occupying the suit land as its owners for the last more than 50 years and during that period had never paid any Batai to the defendants-appellants nor they ever admitted their title over the suit land. It was averred to the plaint filed by the plaintiffs. respondents in all the three cases that on account of some clerical mistake the defendants-appellants bad been shown to be owners of the suit land to the extent of half thereof and on that basis they attempted to realise share in the produce from the plaintiffs. According to the plaintiffs-respondents Massu and Mewa predecessors-in-interest of the defendants-appellants were wrongly shown in the relevant revenue papers as owners of half of the suit land while Ghulaman and others were shown to be, the owners of the remaining half. Ghulaman and others filed a suit for possession for half of the land on the basis of title but since they failed to prove the same, the same was dismissed. Said Massu and Mewa thereafter transferred their half share in the suit land in favour of the present appellants who filed a suit for realization of their share in the produce from the plaintiffs-respondents but did not succeed. It was asserted in the plaint that since the defendants. appellants asserted their title over the suit land, therefore, the same gave cause of action to the respondents who filed the present suits. They also claimed ownership based upon their adverse possession for the last more than 12 years.

3. All the suits were contested by the, defendants-appellants who Inter alia pleaded that the plaintiffs-respondents were in possession of a part of the suit land as co-sharers and had no adverse possession thereon. They further stated that one of the defendants-appellants namely Wasgan filed a suit for realization of rent from the plaintiffs-respondents in the revenue Court but the same was compromised after the rent was paid to him. They further submitted that the suit filed by Ghulaman and others if any had no bearing upon their title over the suit land.

4. As many as three issues were framed on the basis of the pleadings of the parties; as to whether the plaintiffs-respondents were the owners of the suit land, whether they have acquired title thereto by their adverse possession and whether they are in possession of the suit land and for that reason their suit is maintainable. The learned trial Court found issue No. 3 in favour of the plaintiffs but dismissed their suit on Issues Nos. 1 and

2. He accordingly refused to grant decree to the plaintiffs-respondents who however, succeeded in appeal before the learned District Judge, Dera Ghazi Khan. The present appeals have been filed by the defendants challenging the validity of the judgments and decrees pawed by the District Judge.

5. The main question to be examined in this case is as to whether the plaintiffs-respondents are the owners of the suit land and if not in clear terms whether they have derived such title on account of their adverse possession over the land. It has been found by the learned trial Court that since no documentary or oral evidence has been produced by the plaintiffs on record showing that as to how and under what circumstances they acquired title of hall of the land, therefore, it cannot be held that they are the owners of the same. With regard to other half, their title has been found to be intact. The evidence produced by the plaintiffs shows that they mainly rely upon their long possession over the suit land in order to establish their title thereon. Alternatively they have also claimed title through their adverse possession extending over the period of 50 years and for that purpose they have relied upon document Exh. P. 3, relevant jamabandi at the time of institution of the suit, Exh. P. 8 settlement jawabandi, Exh. P. 7, order of the Revenue Court dated 19-8-1937 disallowing Wassan one of the defendants from realizing rent of the suit and from the plaintiffs, Exh. P. 2, decree passed in their suit. They have also placed reliance in this behalf upon the various entries as made in Khasra Girdawaris. Reliance has been particularly made upon the entry Bila Laghan Ba Khlyal Milklyyat Khud. It has been argued that Exh. P. 7 and Exh. P. 2 show that half of the suit land was given to the plaintiffs in recognition of their title based upon their adverse possession and as such on the basis thereof they are also owners of the other half. It is submitted and also found favour by the learned District Judge that the entry Bila Lagan Ba Khiyal Milkiyyat khud in favour of the plaintiffs-respondents negatives the title of the defendants-appellants over the land in question and after the plaintiffs. respondents were shown to be in possession as such the defendants-appellants ceased to have anything to do with the suit land. According to the plaintiffs it was shown other wise on account of collusion between the defendants and the revenue staff.

6. I have carefully examined the documentary as well as oral evidence. Exh. P. 8 settlement jamabandi is an important document which has been placed on record by the plaintiffs themselves. In ownership column thereof it is clearly mentioned that the defendants-appellants are co-sharers with plaintiffs-respondents. The statement of P. W. 1, Gehna has to be read in conjunction with the said entry in order to find out as to what is the real position obtaining on the spot. He has clearly stated that the land in question is jointly held by the owners and they every year distribute certain pieces of land amongst themselves for the sake of convenience for cultivation purposes. The entry as made in Exh. P. 8 and statement of P. W. 1 has not been referred to by the learned District Judge while the same has been rightly relied upon by the learned trial Court. It has been rightly found by the learned trial Court that this clearly shows the land to be in joint possession of the owners and possession of the plaintiffs-respondents over certain piece of land for a long time does not mean that they have been in exclusive possession thereof or have acquired any adverse possession on account of that against the defendants-appellants. Since the plaintiffs respondents are co-sharers with the defendants-appellants, therefore, their possession over a particular piece of land and non-payment of rent by them to the other co-sharers does not mean that they have become owners through adverse possession. For that purpose they have to show that their possession as such has been open and hostile. No such oral or documentary evidence A has been filed on record to prove this aspect of the case. It has been held in Pira and others v. Hakim and others P L D 1952 Lah. 483 that adverse possession does not start by simple assertion of denial of title of rival co-sharer in partition proceedings meaning thereby that if anybody claims to be owner of a property as against another person, his such mere assertion would not make him its owner through alleged adverse possession unless his possession as such has been open and hostile. The entry as referred to above showing the plaintiff- respondents claiming themselves to be owners of the suit land and not paying q any share to the other owners does not make them owners of the land to the exclusion of others. It has been found in Lala and another v. Mst. Jante 1968 S C M R 131 that entry in jamabandis "ba sharah malikan bawajah kabza" by itself is not sufficient to constitute adverse possession. Such entry is not an unequivocal assertion of a hostile title. In Mst. Omai and others v. Hakeem Ifhan and others 1970 S C M R 499 it has been held that possession of one co-heir is possession of all co-heirs in law and mere non-participation in profits of property by one co-heir and exclusive possession by the others is not sufficient to constitute adverse possession, unless it is shown that the other co-heir has been ousted by some overt act. In the present case the defendants-respondents have been shown in the relevant column of Exh. P. 8 co-sharers in the suit land The mere fact that they bad not been paying any rent or they have been in C exclusive possession of the suit land would not make them owners through adverse possession. Similar view has been taken in Chhittar and others v. Ude Singh and another A I R 1937 Lah. 430 that where a co-sharer enters into exclusive possession of land also belonging to another co-sharer, whose name has been shown in the revenue record as a co-sharer. and, where on the death of the said co-sharer his share is mutated amongst all the co-sharers along with the co-sharer in possession, the co-sharer in possession cannot be held to have acquired adverse possession in absence of any overt act. It has also been held that mere fact that co-sharer in possession was in possession to the. exclusion of other co-sharers of the land and was paying land revenue for the same, does not prove any overt act of adverse possession.

7. If the situation as obtaining in the present case is analysed in the light of the authorities, referred to above, the same becomes quite clear that the plaintiffs-respondents irrespective of the entry in their favour showing them to be in possession "Bila lagan ba khiyal malkiyat-i-khud" would not constitute adverse possession in their favour and against the defendants -appellants.

8. This being the position all the three appeals are hereby accepted and the judgment and decree passed by the learned District Judge, against the appellants is hereby set aside. However, in the circumstances of the case there will be no order as to costs. S. A. H. Appeals accepted.